R. v. Armstrong, 2018 ONCJ 1011

ONTARIO COURT OF JUSTICE CITATION: R. v.

Armstrong , 2018 ONCJ 1011 DATE: 2018 05 11 COURT FILE No.: Barrie 3811 998 17 6814 BETWEEN: HER MAJESTY THE QUEEN — AND — Kayla Armstrong Before Justice Carlton Heard on April 18, 2018 Reasons for Judgment released on May 11, 2018 Rachel Jones....................................................................................... counsel for the Crown The defendant Kayla Armstrong........................................................... on her own behalf Carlton J.: [ 1 ] Kayla Armstrong is charged that she did unlawfully possess a controlled substance, to wit, cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act . [ 2 ] The Crown called three witnesses, the arresting officer P.C.

Matthew Ellwood, the searching officer, P.C. Leah Benham and the property officer, Ralph Luppe, all of the Huronia West O.P.P. detachment. [ 3 ] Ms. Armstrong, who defended herself, did not call any evidence.

Summary of the Case [ 4 ] Ms. Armstrong was arrested at 0135 hours on October 26, 2017 on a charge of impaired operation by P.C. Ellwood, a male officer. [ 5 ] At the scene, on Main Street in Wasaga Beach, P.C. Ellwood, who was alone conducted a pat-down search “with the back of his hand” before placing Ms. Armstrong into his cruiser and transporting her to the detachment. Nothing was found during this pat-down search. No drugs or weapons were found at the scene. [ 6 ] Ms. Armstrong was the subject of a more intrusive search at the detachment. I will address the circumstances of that search later in the judgment.

P.C. Benham found a small amount of a powdery substance wrapped in lined or graph paper in the left bra cup of Ms. Armstrong. [ 7 ] This substance and paper were entered in evidence as Exhibit #1. They were placed within a Ziploc bag by P.C. Benham. The small amount of powdered substance and the paper are visible within the bag.

[8] P.C. Benham weighed the paper and substance at 2 g and estimated that each had a mass of approximately 1 g each. [9] The Court heard about the processing of the exhibit. I am satisfied beyond a reasonable doubt by that evidence that the substanceseized from within the graph paper found inside of the bra of Ms. Armstrong is the substance analysed by Health Canada described in theCertificate of an Analyst in Exhibit #2. I am satisfied beyond a reasonable doubt that this substance is cocaine. [10] A voir dire was held in regards to utterances made by Ms. Armstrong after the substance was seized by P.C. Benham.

P.C.Benham testified that Ms. Armstrong was reaching for the substance. I found these statements to be voluntary. [11] P.C. Benham arrested Ms. Armstrong for possession of a controlled substance. P.C. Benham testified that Ms. Armstrong statedto her that, “I didn’t know it was there” and “It’s my boyfriends”. P.C. Benham then relayed a caution to Ms. Armstrong, after which Ms.Armstrong stated, “How do you know it’s cocaine?” Analysis [12] I have found to a criminal standard that the Crown has proven the substance seized to be cocaine. [13] The Crown must prove to the criminal standard that Ms.

Armstrong had knowledge of the nature of the substance and controlover the substance. [14] I find that the Crown has proven the issues of knowledge and control beyond a reasonable doubt. [15] The substance was found in an intimate area of the body. There is no evidence it was placed there without the knowledge of Ms.Armstrong. The only reasonable inference is that she had control over it on her person. [16] Her knowledge of the illicit substance can be inferred by its placement in a private area of the body. Such placement is designedto prevent any observation of the items.

The substance was only lightly wrapped in a makeshift envelope from a small piece of graphpaper. The character of the substance would be known by anyone handling the paper. [17] I note as well that Ms. Armstrong reached for the item when seized by P.C. Benham. [18] While I admitted the utterances of Ms. Armstrong, I do not need to rely on those statements to make this finding. [19] I find that the only reasonable inference on the evidence is that Ms. Armstrong was aware of the illicit character of the substance,specifically that she had knowledge and control of the cocaine secreted in her bra.

I find her knowledge and control to be established tothe criminal standard. Nature of the Search [20] This does not entirely end the matter. [21] During the evidence the Court raised the issue of the authority for and reasonableness of the search carried out by P.C. Benham. [22] I was advised that while Ms. Armstrong had given some indication prior to trial that she was going to file a Charter applicationalleging a breach of her

section 8 rights against unreasonable search and seizure she did not do so. [23] I advised the Federal Crown that the Court may be obliged to consider the issue (see R. v. Tran, (ON CA),[2001] O.J. No. 3056 (C.A.)). The Federal Crown very fairly did not object to the consideration of this issue and called additionalevidence from P.C. Benham on the circumstances of the search. [24] Ms. Armstrong raised the issue in her submissions to the Court. She noted that she was searched at the scene and she did notunderstand why a second search was conducted.

She submitted that she was arrested for drinking and driving and nothing was found atthe scene regarding alcohol. [25] The Federal Crown also provided written submissions on the legitimacy of the search. [26] I appreciate that given the manner in which the issue is raised it may be that certain aspects of the record are incomplete. Thatsaid, given that the onus is on the Crown, there is a sufficient record to make a determination as to the legitimacy of the search. The Search [27] P.C. Benham conducted the search.

It took place in the booking room of the Huronia West detachment between 0152 and 0200hours. [28] P.C. Ellwood was not present for the search. He stood in a nearby hallway in case he was needed. P.C. Benham instructed Ms.Armstrong to remove first the clothing on the top half of her body, put clothing back on the top half and remove the clothing on the lowerhalf of her body, or in the reverse order. [29] P.C. Benham testified she located the substance inside the bra without actually removing the bra itself. P.C. Benham testified thatthe bra was not removed. [30] It is not entirely clear in the evidence how P.C.

Benham observed the paper containing the substance; whether she asked Ms.Armstrong to pull the bra away from her body to inspect the area covered by the bra or whether she could determine that there wassomething in the bra just by its appearance.

[31] In the search on the lower half of the body P.C. Benham testified that Ms. Armstrong was wearing skintight pants. She had Ms.Armstrong take those pants off. P.C. Benham testified that the underwear was “checked” but not removed. P.C. Benham was not askedas to the precise meaning of checked. P.C. Benham did not have any notes about the search of the lower half of Ms. Armstrong. It is notclear whether this was only a visual inspection of the underwear or whether the underwear was pulled away from her body to allow for avisual inspection of the areas of the body covered by the underwear. [32] P.C.

Benham testified that the purpose of this search was to ensure that the person being lodged in a cell did not have anyweapons, drugs or anything she could use to hurt herself or an officer or any other person. P.C. Benham testified that when a female iswearing an underwire bra, the bra is taken from the detainee until they are released. [33] P.C. Benham’s evidence was based primarily on her reference to notes made at or near the time of the search. Her independentrecollection of events, other than the finding of the narcotic and of the utterances of Ms. Armstrong, was limited. P.C.

Benham oftenrelied on her standard practise when describing what had happened with Ms. Armstrong. [34] The evidence in this case is that Ms. Armstrong is kept in custody until approximately 0442 hours when P.C. Ellwood drove herback to her residence. She spent some of the time in the detachment in the breath room for the testing process as well as in a cell in thedetachment. [35] I note two additional matters. [36] First, there is no information that Ms. Armstrong was ever going to be held for bail or introduced into a general prisonpopulation. It is clear that Ms.

Armstrong was going to be subject to the breath testing process and then released after spending a periodof time in a holding cell. There is no evidence that Ms. Armstrong was ever placed in a cell with another detainee. [37] Second, there is no evidence that caused P.C. Ellwood or P.C. Benham to specifically believe that Ms. Armstrong was inpossession of weapons or narcotics at the time of the search. Position of the Parties [38] The Court has raised the reasonableness of the search. It is a warrantless search and under

section 8 of the Charter, the Crownmust show that the search is authorized by law, the law itself is reasonable and the search was carried out in a reasonable manner (see R.v. Collins, (SCC), [1987] 1 S.C.R. 265). [39] The Crown relies on the power to search incident to arrest. I accept that authority, as set out by the Supreme Court in R. v.Golden, 2001 SCC 83 , [2001] 3 S.C.R. 679, as the basis for a search of Ms.

Armstrong before she was placed in the cells. [40] The issue in this case are the first and third ground of the Collins test: was the search authorized by law and was the manner ofthe search reasonable. [41] The Crown describes the search as a “lodging search” and states that it is short of a “complete” or “strip” search as defined inGolden. [42] The Crown submits that appropriate steps were taken to ensure that Ms. Armstrong was treated in a dignified manner. The maleofficer was absent. P.C. Benham addressed separately the search of the top and then the bottom half of Ms. Armstrong’s body.

The braand underwear of Ms. Armstrong remained on at all times. [43] The Federal Crown concedes P.C. Benham’s decision to carry out this search was based not on the specific circumstances of Ms.Armstrong’s encounter with police but as the standard fashion in which P.C. Benham searches a female being placed in the cells. [44] The Federal Crown states that it is reasonable to conduct this search given the responsibility that police have for the welfare ofthose in their cells.

Police are entitled to conduct a search of this intrusiveness to ensure that the detainee does not have anything that canbe used to hurt an officer, themselves, or another inmate. They have a responsibility to search for substances that could be ingested whilein the cells.

Was this a “Strip Search”? [45] In Golden, the majority judgment accepts the following as a working definition of a strip search: The appellant submits that the term "strip search" is properly defined as follows: the removal or rearrangement of some or all of theclothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of afemale), or undergarments. [46] The test in Golden does not require that undergarments be removed; removing clothing such that undergarments can be visuallyinspected meets this definition of a strip search. [47] The Court noted that such searches were more intrusive than frisk searches and less intrusive than body cavity searches. [48] It is clear that the search of Ms.

Armstrong meets the definition of a “strip search”. The language used by P.C. Benham mirrorsthat given in Golden. P.C. Benham testified that she had Ms. Armstrong “remove the clothing, check each piece, and then I would getdown to their undergarments”. As set out above, P.C. Benham did not have a strong recollection of the details of the search. I find thatthe folded paper containing the narcotic could not have been found or removed without at least some visual inspection of the breast ofMs. Armstrong. Were There Grounds for a Strip Search?

[49] In Golden, the Supreme Court set out a number of limits on the power at common law to carry out a strip search of a detainee: 1. Strip searches cannot be carried out as a matter of routine policy (at para. 90 and 95). 2. The strip search must be pursuant to a lawful arrest for which there were reasonable and probable grounds (at para. 91). 3. The strip search can be justified as one incident to arrest if the search is related to the reasons for which the person is arrested (atpara. 92). 4.

Alternatively, the strip search can be justified if police are searching for weapons to ensure the safety of police, the detainee or otherpersons. There must be evidence from the frisk search or some other particular circumstances to justify a strip search for weapons. Themere possibility that a weapon may be concealed is not sufficient (at para. 94). 5.

There is a greater need for a strip search when a detainee is entering a prison population as opposed to a detainee who will bedetained for a short period and then released (at para. 96). 6. “Police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable groundsjustifying the arrest” (at para. 99; see as well R. v. Gonzales, 2017 ONCA 543 , [2017] O.J. No. 3437 (C.A.) at para. 138). 7. Strip searches should generally be conducted at a police station. The search should be authorized by a police supervisor.

The searchshould be conducted by a police officer of the same gender (at para. 101-102). [50] The submission of the Federal Crown that what occurred is a lodging search is related to point (5) above, namely that a basis fora strip search can be premised on the detainee entering into the general prison population. [51] I find that reasonable grounds for the strip search of Ms. Armstrong have not been made out on the evidence. [52] The strip search was not incident to the reasons for her arrest. Ms.

Armstrong had been arrested for an impaired driving charge.There was no evidence presented that a strip search would reasonably provide evidence in relation to that charge. [53] The primary reason offered by P.C. Benham for the strip search was to ensure that Ms. Armstrong did not have weapons on herperson prior to being placed in a holding cell. On the basis of the evidence in this case I find that reasonable and probable groundsjustifying the strip search have not been made out. I make this finding for the following reasons: • There was no individual assessment of the need for a search of Ms. Armstrong. P.C.

Benham had not been involved in the arrest ofMs. Armstrong. Her involvement was solely in relation to the search of Ms. Armstrong. Neither she nor P.C. Ellwood gave evidenceabout any observations or issues specific to Ms. Armstrong to justify a strip search to search for weapons. • At the time of the strip search there had only been a very limited frisk search of Ms. Armstrong at the scene of her arrest. P.C.Ellwood described carrying out a frisk search with the back of his hand. There were clearly grounds for P.C. Benham to conduct a morecomprehensive frisk search.

This is sometimes referred to in the caselaw as a Level II search in which footwear and all but one layer ofclothing over top of any undergarments is removed to allow for the frisk search (see R. v. Samuels, 2008 ONCJ 85 , [2008] O.J.No. 786 (C.J.) at para. 13). Such a search may provide grounds for a strip search but such a search was never conducted in this case. • Ms. Armstrong was described as wearing “skintight white pants”. Ms. Armstrong was wearing a shirt over top of her bra. It wasdescribed as compression garment that “was quite tight around her” upper body. There was no evidence as to why, given Ms.

Armstrongwas wearing clothing of this description that a comprehensive frisk search would not locate any weapons secreted in her clothing. • There is no evidence that Ms. Armstrong would ever be held for bail or otherwise introduced into the general prison population.There is no evidence she was ever in a cell with another detainee. Her entire stay at the detachment was less than three hours. Thisincluded the time in the breath room.

The statements made at paragraph 97 of the Golden decision make clear that strip searches in suchsituations may only be justified on the specific facts of the case and “cannot justify” routine strip searches of all arrestees”. [54] As to the manner of the search I note that there is no evidence that a supervisor authorized the search of Ms. Armstrong. [55] P.C. Benham spoke in general terms of the manner in which she conducts these searches for women entering into a cell.

Whileshe testified to having conducted such searches before she did not testify that every female entering the cells is searched in the samemanner as Ms. Armstrong. Nor did she testify that these searches are only carried out on a case by case basis. The record is silent on thisissue. [56] Lastly, I note that this search occurred in the main booking room of the Huronia West Detachment. I understand from theevidence this is an area that officers or other persons present use to travel through the detachment. P.C. Ellwood testified that he stood“probably in the hallway” to afford Ms. Armstrong some privacy.

The Court did not hear any evidence as to why the search was not orcould not be conducted in a room where the possibility of others coming onto the search could be reduced or removed. That said, there isno evidence that anyone other than P.C. Benham was present when this search occurred. [57] I find that the Crown has not met onus of showing that the search of Ms. Armstrong was authorized by law. I find that Ms.Armstrong’s right to be secure against unreasonable search and seizure in

section 8 of the Charter was breached by this search. Section 24(2) of the Charter [58] There remains the issue of whether the evidence gathered from the search of Ms. Armstrong should be admitted or excluded attrial. Section 24(2) of the Charter reads as follows: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights

or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [59] The onus is on the applicant to show on a balance of probabilities that the admission of the evidence, in this case the cocainefound on Ms. Armstrong, would bring the administration of justice into disrepute (see R. v. Harper, (SCC), [1994] 3S.C.R. 343). [60] This question is governed by the Supreme Court of Canada decision in R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353in which the court is directed to considering the impact of the admission of the evidence on society’s confidence in the administration ofjustice through an examination of three areas of inquiry: the seriousness of the Charter violation, the impact of the Charter breach onthe Charter protected interests of the accused and society’s interests in the adjudication of the case on its merits. [61] The Court must put itself in the position of a reasonable person, informed of all of the relevant circumstances and of the purposeof the Charter right at issue in determining whether the evidence should be excluded. [62] Dealing now with the first arm of the Grant test I assess the Charter violation in this case as serious. [63] The Supreme Court decision in Golden dates from 2001.

It clearly sets out the basis for when strip searches can be conducted andthe manner in which they are to be conducted. The core of that decision is that strip searches are “a significant and very directinterference with personal privacy” (at para. 89) and as such, can only be justified, particularly for those not entering the general prisonpopulation, on a case by case basis. No such evaluation occurred here. [64] The facts here do not support a finding that police here honestly but unreasonably believed that the grounds for a strip searchexisted based on the circumstances specific to Ms. Armstrong.

The evidence is that there was no consideration given to the necessity orjustification for a strip search. It was seen as a precondition to Ms. Armstrong entering a holding cell. [65] In R. v. Flintoff, (ON CA), [1998] O.J. No. 2337, the Ontario Court of Appeal, in assessing the seriousness ofthe breach (albeit under the pre-Grant test for exclusion) related to a strip search conducted in a drinking and driving case, stated asfollows: It was unreasonable to strip search the appellant and there was no tenable justification for the intrusive violation of the appellant'sCharter rights.

The protection against unreasonable search of one's person is a very important Charter right. The seriousness of theCharter violation is so great that the admission of the evidence would bring the administration of justice into disrepute. [66] In regards to the second arm of the Grant test, I find that the impact or effect on Ms. Armstrong was serious. While I do not haveany evidence from Ms.

Armstrong, the Supreme Court in Golden stated that “strip searches can be humiliating, embarrassing anddegrading for those subject to them” (at para. 89). [67] The third ground to consider is society’s interest in an adjudication on the finding of the cocaine is the basis of the Crown’s case.It is reliable evidence. This line of inquiry strongly favours admission as opposed to exclusion. [68] The balancing process for the three lines of inquiry is set out in R. v. Gonzales.

At paragraph 157, the Court states “[W]here thefirst two lines of inquiry under Grant advance a strong case for exclusion, the third line of inquiry will rarely, if ever, tip the balance infavour of admissibility”. [69] This is a case where the first and second inquiries in this case make a strong case for exclusion.

This is not one of the rare casesin which, in the face of the strong case for exclusion made by the first two factors, that the third inquiry tips the balance in favour ofadmission. [70] Weighing all three inquiries I do find that the admission of the seized cocaine into evidence would bring the administration ofjustice into disrepute. [71] Given that finding there will be a finding of not guilty on the charge before the Court. Released: May 11, 2018 Signed: Justice Carlton